1. Applicant's Name: a. Application Date: 26 April 2021 b. Date Received: 26 April 2021 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. The applicant seeks relief contending, in effect, after 11 years of good service, the applicant had one isolated incident. The applicant states being found not guilty, and the Judge in the applicant's case requested the case be dismissed. The applicant believes an upgrade in characterization would restore the applicant's honor, and would accurately reflect the applicant's service. The applicant provided evidence of PTSD which may have affected judgment, and mitigating conduct leading to discharge. In a records review conducted on 24 May 2022, and by a 4 - 1 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / General (Under Honorable Conditions) b. Date of Discharge: 28 August 2015 c. Separation Facts: (1) Date and Charges Preferred (DD Form 458, Charge Sheet): The charge sheet is void from the AMHRR. Special Court-Martial Order Number 7, dated 20 October 2015, reflects the applicant was charged with: Charge I: Violating Article 92, UCMJ, The Specification: The applicant did, between 22 October 2014 and 2 December 2014, violate a lawful general regulation, to wit: paragraph 4-14b, Army Regulation 600-20, dated 22 October 2014, by wrongfully engaging in an inappropriate relationship causing actual or perceived partiality or unfairness. (Dismissed after arraignment) Charge II: Violating Article 128 UCMJ: Specification 1: The applicant did, on 2 December 2014, unlawfully shove PVT D.C. on the back with the applicant's hand. Specification 2: The applicant did on diverse occasions between 1 September 2013 and 2 December 2014, unlawfully strike PFC H.C. in the head with the applicant's hand. Specification 3: The applicant did on diverse occasions between 9 August 2014 and 2 December 2014, unlawfully strike PVT D.C. in the head with the applicant's hand. The Additional Charge: Article 93 Specification 1: The applicant did between 1 September 2013 and 2 December 2014, did maltreat PFC H.C., a person subject to applicant's orders, by wrongfully striking PFC H. and calling PFC H. derogatory terms, such as "fuck boy," "faggot," "shithead," and "fucker". Specification 2: The applicant did between 9 December 2014 and on 2 December 2014, did maltreat PVT D.C., a person subject to applicant's orders, by wrongfully striking PVT D.C. and calling PVT D.C. derogatory terms, such as "fuck boy," "faggot," "shithead," and "fucker." Sentenced Adjudged: To be reprimanded. (2) Legal Consultation Date: NIF (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. The findings of guilty and the sentence were disapproved. (4) Recommended Characterization: NIF (5) Separation Decision Date / Characterization: 12 August 2015 / General (Under Honorable Conditions) 4. SERVICE DETAILS: a. Date / Period of Enlistment: 2 March 2012 / 5 years b. Age at Enlistment / Education / GT Score: 20 / HS Graduate / 103 c. Highest Grade Achieved / MOS / Total Service: E-6 / 12B30, Combat Engineer / 11 years, 5 months, 11 days d. Prior Service / Characterizations: RA, 18 March 2004 - 10 January 2007 / HD RA, 11 January 2007 - 29 July 2008 / HD RA, 30 July 2008 - 15 June 2009 / HD RA, 16 June 2009 - 1 March 2012 / HD e. Overseas Service / Combat Service: Hawaii, SWA / Iraq (5 March 2005 - 23 February 2006; 1 September 2008 - 1 September 2009); Afghanistan (21 May 2011 - 10 May 2012) f. Awards and Decorations: ARCOM-4, AAM-2, AGCM-2, NDSM, ACM-2CS, ICM-2CS, GWOTSM, ASR, OSR-3, NATOMDL g. Performance Ratings: 29 October 2011 - 19 September 2012 / Among The Best 14 September 2012 - 13 September 2013 / Among The Best 27 September 2013 - 24 June 2014 / Among The Best 25 June 2014 - 24 June 2015 / Marginal h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 7, dated 20 October 2015, as described in paragraph 3c. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: VA Rating decision letter provided by the applicant, dated 7 March 2016, reflects the applicant was assigned a 70 percent disability rating for PTSD with alcohol use disorder. 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293; DD Form 214; VA Rating Decision letter; VA letters; medical records; NCOERs; certificates of achievement (two); AAM certificates with recommendations (two); ARCOM recommendations (four); ARCOM certificates (three); character letters (ten); and Special Court-Martial Trial transcript. 6. POST SERVICE ACCOMPLISHMENTS: None provided with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the Service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. (6) Paragraph 10-8a stipulates a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.) (7) Paragraph 10b stipulates Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. (8) Chapter 15 provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court-Martial. f. Army Regulation 601-210, Regular Army and Reserve Components Enlistment Program, governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DODI 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to honorable. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The evidence of AMHRR confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, voluntarily requested, a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. The applicant contends the narrative reason for the discharge needs changed. The applicant was separated under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-8, Separation Processing and Documents, governs the preparation of the DD Form 214 and dictates the entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be as listed in tables 2-2 or 2- 3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation stipulates no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant submitted evidence of a PTSD diagnosis, which may have affected the applicant's judgment and mitigated conduct leading to discharge. The applicant provided a VA rating decision letter, reflecting a 70 percent disability rating for PTSD to support this contention. The applicant contends the event which led to the discharge from the Army was an isolated incident. Army Regulation 635-200, in pertinent part, stipulates circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends the court-martial charges were dismissed before the discharge. The dismissal of court-martial charges is a procedural step, which is part of a normal process when an alternative forum is chosen. In this case, the charges were dismissed because the applicant requested a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court- martial, and the convening authority approved the request. The applicant contends good service, including combat tours. The Board considered the service accomplishments and the quality of service. The third party statements provided with the application speak highly of the applicant. They all recognize the applicant's good character. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the Board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that applicant's PTSD may mitigate the basis of separation. (2) Did the condition exist or experience occur during military service? Yes. The Board's Medical Advisor found that VA records determined that applicant's PTSD was present during applicant's time in military service. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. It is the opinion of the Board's Medical Advisor that the applicant's PTSD partially mitigates the applicant's basis for separation. Specifically, applicant's alcohol abuse, and verbally abusive language toward some soldiers, are mitigated because there is an association between applicant's PTSD and applicant's use of alcohol/illicit drugs to self-medicate applicant's PTSD symptoms, as well as a nexus between applicant's PTSD and anger outbursts and verbal aggression, when applicant used abusive language and insults toward other soldiers. However, the applicant's purposeful striking other soldiers is not part of the natural history or sequelae of applicant's PTSD and, as such, is not mitigated, even under Liberal Consideration. (4) Does the condition or experience outweigh the discharge? No. Based on liberally considering all the evidence before the Board, the ADRB concurred with the Board's Medical Advisor and determined that the applicant's PTSD did not outweigh the unmitigated striking of other soldiers that was the basis of separation. b. Response to Contention(s): (1) The applicant submitted evidence of a PTSD diagnosis, which may have affected the applicant's judgment and mitigated conduct leading to discharge. The Board liberally considered this contention, but determined the applicant's PTSD did not outweigh the partially mitigated basis for applicant's separation. (2) The applicant contends the event which led to the discharge from the Army was an isolated incident. The Board considered this contention and the applicant's assertion of an isolated incident, however the Board determined that this contention did not warrant any change to the discharge. (3) The applicant contends the court-martial charges were dismissed before the discharge. The Board considered this contention, however, the Board concluded that the charges were dismissed because the applicant requested a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, and the convening authority approved the request and therefore, this contention does not warrant any change to the discharge. (4) The applicant contends good service, including combat tours. The Board determined the applicant's discharge was appropriate because the quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct of physically striking of junior Soldiers, the applicant diminished the quality of service below that meriting an honorable discharge at the time of separation. c. The Board determined the discharge is, at this time, proper and equitable, in light of the current evidence of record. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, despite applying liberal consideration, the applicant's BH diagnosis of service connected PTSD did not outweigh the unmitigated offenses of striking junior Soldiers, and the discharge was both proper and equitable. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. (2) The Board voted not to change the applicant's reason for discharge or accompanying SPD code and the reason the applicant was discharged was both proper and equitable. (3) The RE code will not change, as the current code is consistent with the procedural and substantive requirements of the regulation. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason / SPD Code to: No Change d. Change RE Code to: No Change e. Change Authority to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210002993 1